United States v. Santos Domingo Castillo-Roman , 291 F. App'x 273 ( 2008 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                    FILED
    ________________________         U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    Aug. 28, 2008
    No. 08-10404                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 07-20308-CR-JEM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    SANTOS DOMINGO CASTILLO-ROMAN,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (August 28, 2008)
    Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Santos Domingo Castillo-Roman appeals his sentences of 21 months’
    imprisonment imposed after he pleaded guilty to one count of making false
    statements in an application for a passport with the intent to secure the issuance of
    a passport for his own use, 
    18 U.S.C. § 1542
    , and one count of making a false
    representation of United States citizenship by presenting a fraudulently-obtained
    passport as proof of identity, 
    18 U.S.C. § 911.1
    In the presentence investigation report (“PSI”), the probation officer
    calculated the adjusted offense level to be 10, and Castillo-Roman’s criminal
    history category to be IV based on several prior convictions for conspiracy, a
    controlled substance offense, and money laundering. This category did not,
    however, take into consideration Castillo-Roman’s prior convictions for armed
    robbery, murder, and attempted robbery, all of which occurred more than fifteen
    years before the instant offenses. The PSI also noted that Castillo-Roman was
    currently imprisoned following a racketeering conviction. The resulting guidelines
    range was 15 to 21 months’ imprisonment.
    At sentencing, there were no objections to the PSI. The government
    recommended a sentence in the middle of the guidelines range in light of Castillo-
    Roman’s criminal history, and Castillo-Roman requested the low end of the
    guidelines range. After considering the parties’s arguments, the advisory
    guidelines range, and the sentencing factors, the court sentenced Castillo-Roman to
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    Castillo-Roman was also charged with aggravated identity theft. This count was
    dismissed pursuant to the plea agreement.
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    21 months’ imprisonment, to run consecutively to the term Castillo-Roman was
    already serving on racketeering charges.
    On appeal, Castillo-Roman argues that his sentence was procedurally
    unreasonable because the district court improperly focused on Castillo-Roman’s
    criminal history, while ignoring the sentencing factors listed in 
    18 U.S.C. § 3553
    (a) factors, and failed to give an explanation for the sentence, which was
    higher than that requested by the government and Castillo-Roman. Castillo-
    Roman also argues that the 21-month sentence was substantively unreasonable
    because it was “greater than necessary” to comply with the purposes of sentencing
    set forth in § 3553(a)(2).
    We review a final sentence imposed by a district court for reasonableness.
    United States v. Agbai, 
    497 F.3d 1226
    , 1229 (11th Cir. 2007). The reasonableness
    of a final sentence is reviewed only for an abuse of discretion. United States v.
    Williams, 526 F.3d1 312, 1321 (11th Cir. 2008); see also Gall v. United States,
    552 U.S. ----, 
    128 S.Ct. 586
    , 594, 
    169 L.Ed.2d 445
     (2007). The district court must
    impose a sentence that is both procedurally and substantively reasonable. United
    States v. Hunt, 
    459 F.3d 1180
    , 1182 n.3 (11th Cir. 2006).
    The Supreme Court has explained that a sentence may be procedurally
    unreasonable if the district court improperly calculates the guideline range, treats
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    the guidelines as mandatory, fails to consider the appropriate statutory factors,
    bases the sentence on clearly erroneous facts, or fails to adequately explain its
    reasoning. Gall, 
    128 S.Ct. at 597
    . The Court also suggested that review for
    substantive reasonableness involves an inquiry into whether the factors in 
    18 U.S.C. § 3553
    (a) support the challenged sentence. See 
    id. at 600
    ; United States v.
    Pugh, 
    515 F.3d 1179
    , 1191 (11th Cir. 2008). We will remand if we are “left with
    the definite and firm conviction that the district court committed a clear error of
    judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
    outside the range of reasonable sentences dictated by the facts of the case.” Pugh,
    
    515 F.3d at 1191
     (citations omitted).
    Pursuant to § 3553(a), the sentencing court shall impose a sentence
    “sufficient, but not greater than necessary” to comply with the purposes of
    sentencing listed in § 3553(a)(2), namely, to reflect the seriousness of the offense,
    promote respect for the law, provide just punishment for the offense, deter criminal
    conduct, protect the public from future criminal conduct by the defendant, and
    provide the defendant with needed educational or vocational training or medical
    care. See 
    18 U.S.C. § 3553
    (a)(2). The sentencing court must also consider the
    following factors in determining a particular sentence: the nature of the
    circumstances of the offense and the history and characteristics of the defendant,
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    the kinds of sentences available, the applicable guideline range, the pertinent
    policy statements of the Sentencing Commission, the need to avoid unwarranted
    sentencing disparities, and the need to provide restitution to victims. See
    
    18 U.S.C. § 3553
    (a)(1), (3)-(7).
    “[A]n acknowledgment by the district court that it has considered the
    defendant’s arguments and the factors in section 3553(a) is sufficient.” United
    States v. Talley, 
    431 F.3d 784
    , 786 (11th Cir. 2005). The district court is not
    required to explicitly state that it has considered each of the § 3553(a) factors. See
    United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th Cir. 2005). The burden of
    establishing that the sentence is unreasonable in light of the record and the
    § 3553(a) factors lies with the party challenging the sentence. See Talley, 
    431 F.3d at 788
    .
    After a thorough review of the record, we find no reversible error. The
    district court properly considered the factors set forth in 
    18 U.S.C. § 3553
    (a), along
    with the mitigating factors presented by Castillo-Roman, adequately explained the
    chosen sentence, and imposed a sentence no greater than necessary to comply with
    the purposes of sentencing in § 3553(a)(2). Thus, we conclude the court did not
    abuse its discretion in sentencing Castillo-Roman. Accordingly, the sentence is
    reasonable and due to be affirmed.
    AFFIRMED.
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